Failure to notify the defendant of the place and time of the hearing of the case, as well as the plaintiff's concealment of the essential circumstances of the case, led to the cancellation of the judicial act.
By the decision of the Kirovsky judicial district of the Oktyabrsky district of the city of Karaganda dated February 16, 2000, the marriage between the spouses of Zh., registered on March 10, 1990, was dissolved. The case was not considered on appeal or cassation. By the resolution of the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan dated January 21, 2014, the decision of the court of first instance was overturned on the following grounds. Failure by the court to comply with the provisions of articles 129, 132, 366 of the Civil Procedure Code of the Republic of Kazakhstan entails the unconditional cancellation of the decision of the court of first instance.
It can be seen from the case file that defendant Zh. was in Germany from June 20, 1999 to February 05, 2001, where she gave birth to her second child on January 27, 2000. These are the provisions of paragraph 2 of Article 545 of the Civil Code, according to which the employment contract is considered concluded for an indefinite period if the contract does not specify its validity period. The contract of employment (lease) of residential premises, if it is concluded in connection with an employment relationship, remains valid for the entire period of validity of these relations, regardless of the work performed by the employee in his position (specialty). According to article 51 of the Labor Code of the Republic of Kazakhstan, an employment relationship is considered terminated when an employee has terminated an individual employment contract with the employer on the grounds provided for by law and has not resumed these relations on the day of the court's decision on the claim for eviction from the premises provided to the employee in connection with the employment relationship. When analyzing the legal situation based on a property lease and an individual employment contract, it should be borne in mind that the employee's retention of employment relations with the employer is the basis for prolongation of the property lease for the entire period of the employment relationship, even if the property lease is concluded for a certain period. The housing rights of an employee arising from a property lease agreement are subject to unconditional legal protection during the period of employment with the owner of the dwelling.After returning from Germany, on January 10, 2002, she gave birth to her third child. The father of all three children in the birth certificates is the plaintiff Zh. Defendant Zh. was not properly notified about the consideration of the case on the divorce claim on February 16, 2000. The arguments of the defendant Zh. that she lived with the plaintiff Zh. Until 2012, the case materials did not refute the fact that the court had issued a decision on the dissolution of the marriage only in 2013. When considering the case, the plaintiff Zh. He did not inform the court about the birth of his second child on January 27, 2000. In accordance with paragraph 2 of Article 15 of the Law of the Republic of Kazakhstan "On Marriage and Family" dated December 17, 1998 No. 321-1, which was in force on the day of the contested decision, it was not allowed to dissolve a marriage without the consent of the wife within one year after the birth of the child. Since the case does not require the collection and examination of new evidence, and the court of first instance incorrectly applied the rules of procedural and substantive law, the decision of the court of first instance was overturned. A new decision has been made to dismiss the divorce claim.
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